The supra titled writ petition has been addressed under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, whereby, a writ of prohibition is solicited against respondents from filling the post of Deputy Election Commissioner B-18 through appointment by transfer amongst other person. The petitioner further solicited direction against respondents to promote him against one of the post of Deputy Election Commissioner B-18 according to seniority, qualification and length of service.
2. The summary of case is that petitioner being state subject of Azad Jammu & Kashmir was inducted in civil service of Election Commission as Stenographer B-12 and now he is performing his duties as Assistant Election Commissioner B47 vide Govt. notification dated 28.05.2014. It is stated that respondents prepared a final seniority list of officers and other employees of Election Commission on 22.03.2019. Serial No. 3, of the said seniority list pertains to Assistant Election Commissioner B-17, wherein, petitioner is falling at serial No. 4. It is averred that incumbents falling at serial No. 1 & 2 have already been promoted and now the incumbents falling at serial No. 3 & 4, are falling at serial No. 1 & 2 of the seniority list. It is alleged that Govt. promulgated rules known as Azad Jammu_& Kashmir Election Commission Department Rules, 1989, amended through Govt. notification dated 15.06.2001, whereby, the post of Deputy Election Commissioner B-18 was provided to be filled in by promotion on the basis of merit from Assistant Election Commissioner B-17, with 05 years' service as such or by transfer of a suitable Officer of B-18, from Civil Secretariat. The aforesaid rules further been amended through Govt. notification dated 28.01.2022 whereby, the post of Deputy Election Commissioner (B-18) shall be filled in by promotion on the basis of seniority- cum-fitness from amongst. Assistant Election Commissioner/Section Officer/Secrecy Officer B-17 with 05 years' service as such or by transfer from amongst the panel of suitable officers of B-18 from Civil Secretariat or any Govt. Department with the prior approval of Government. The petitioner claimed that the provision "or from any Government Department" added in rules with mala-fide intention just to accommodate blue eyed persons. The petitioner claimed that two posts of Deputy Election Commissioner B-18. are lying vacant, on the basis of which he moved an application the competent, authority for his promotion against any of the said post, which was turned down, hence, the instant writ petition.
3. The writ petition has been resisted by Respondents No. 3 to 6 through written statement, whereby, the contents of writ petition have been controverted and submitted that petitioner has got no locus standi to file the instant writ petition. It is further submitted that writ petition of petitioner is consisting of conjecture and surmises. It is maintained that it is the prerogative of authority to decide what mode of appointment should be adopted. If it is decided as a matter of policy that both or any of two posts are to be filled by promotion, the petitioner, if found qualified for promotion, on the basis of seniority cum-fitness according to rules, shall be considered. The petitioner failed to substantiate that framing enforcement and formulation of departmental rules is the prerogative of authority, hence, rules cannot be framed or enforced on the wish or choice of any employee. The writ petition has been controverted on all counts and submitted for dismissal of the same.
4. Sardar M.R. Khan, Advocate, appearing on behalf of petitioner submitted that enforced rules have been amended through Govt. notification dated 28.01.2022, for mala-fide reasons, just to accommodate blue eyed persons. He further stated that if the post of Deputy Election Commissioner B-18 has been filled in by transfer according to amended rules through Govt. notification dated 28.01.2022, the promotion of petitioner should be blocked, hence, submitted for acceptance of writ petition.
5. Mr. Tahir Aziz Khan, Advocate, the learned legal advisor appearing on behalf of respondents, while controverting arguments of the learned counsel for petitioner submitted that claim of petitioner is consisting of conjecture and surmises. He further argued that in fact, petitioner is aggrieved from the existing rules, however, as per law, rules cannot be made on sweet will of any incumbent. The learned counsel pressed into service that as per Rule 9(2) of The Azad Jammu & Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 promotion, including proforma promotion cannot be claimed as a matter of right by any civil servant. Even then, if petitioner found qualified, for promotion, according to rules, he shall be considered for promotion against the post in question, hence, craved for dismissal of writ petition. The learned counsel in support of his contention referred to and relied upon following case law. i. Syed Rashid Hussain Shah v. Azad Govt. & 06 others [2014 SCR 883] ii. Ahmed Khan v. Government of Baluchistan through Secretary S&GAD, Civil Secretariat, Quetta & another [2016 PLC (C.S) 821]; and iii. Muhammad Ahmad Khan & others v. Secretary Environment Protection & others [2011 SCMR 572].
6. I have perused the contents of writ petition and examined the appended documents made available with utmost care.
7. A contemplate perusal of file reveals that petitioner is performing his duties as Assistant Election Commissioner B-17 through Govt. notification dated 28.05.2014. As per seniority list dated .22.03.2019, the petitioner is falling at serial No. 4, however, the incumbents falling at serial No. 1 & 2 have been promoted. As per the Azad Jammu & Kashmir Election Commission Department Rules, 1989, amended through Govt. notification dated 15.06.2001, the post of Deputy Election Commissioner B-18 shall be filled in by promotion on the basis of merit from Assistant Election Commissioner B-17, with 05 years' service as such or by transfer of a suitable Officer of B-18, from Civil Secretariat. The aforesaid rules further been amended through Govt. notification dated 28.01.2022, whereby, the post of Deputy Election Commissioner (B-18) shall be filled in by promotion on the basis of seniority-cum-fitness from amongst Assistant Election Commissioner/Section Officer/Secrecy Officer E-17 with 05 years' service as such or by transfer from amongst the panel of suitable officers of B-18 from Civil Secretariat or any Govt. Department with the prior approval of Government. The aforesaid rules are reproduced as under: S. #Name of Department Functional UnitName of post Grade Appointing authority Minimum Qualification for appointment Method of recruitmentAge of initial recruitment Examination/training & others conditions for confirmation 12 3 4 5 67 8 9 1011 3-do- -do-Deputy Election Commissioner/Deputy Secretary BS-18-do- i. as per col. 8. ii.
Graduate By promotion on the basis of seniority- cum-fitness from amongst Assistant Election Commissioner Section Officer / Secrecy Office BS-17 with 05 years service as such OR By transfer from amongst the panel of suitable officer of BS- 18 from Civil Secretariat or any Govt.
Department with the prior approval of Govt.
The grievance of petitioner is that the provision "or from any Government Department" added in rules with mala-fide intention just to accommodate favorite person. A perusal of file reveals that petitioner is holding the post of Assistant Election Commissioner B-17, therefore, if department found him eligible as per rules, it is the responsibility of the authority to consider him for promotion against the post, of Deputy Election Commissioner B-18, as per rules.
8. The learned counsel for petitioner argued that at present two posts of Deputy Election Commissioner B-1 8 are lying vacant in the department, which are to be filled in and if the authority fills the same by transfer while adopting amendment in rules made through Govt. notification dated. 28.01.2022, i.e. by transfer from any Govt. Department with the approval of the Government, the promotion of petitioner would be stopped. In this regard, the respondents specifically stated in written statement that if it is decided as a matter of policy that both or any of two posts are to be filled in by promotion, the petitioner if found qualified on the basis of seniority-cum-fitness according to rules, shall be considered, as per law.
9. The crux of above discussion is that the respondents are directed to send the case of petitioner before Selection Board for considering him for promotion against available post of Deputy Election Commissioner B-18 as per rules, within a period of 15 days after receiving the instant judgment. However, the authority is at liberty to fill a post of Deputy Election Commissioner B- 18, by transfer on the basis of deputation policy for specific period, if it deems proper. The writ petition is disposed of in the manner as indicated herein above, with no order as to the costs.